Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-14

| hlrDy, February II, 1885, to partition a
, third Of league of land TO which appeE
lee asserted title to three-fourths and al
legged title to the residue in Kirby. The
! land is in Llano county. On June 4, 1885,
the case was dismissed as to Kirby, who
then became party plaintiff, and On tbs
day the appellees filed an action Of tres
pass to try title, to which was pleaSfed
mot guilty." and limitations based on
five years possession un1er--sa tax
deed dated June 6, 1872 and
that taxes had been paid on said
land by the appellant ever since.
In the fall OF 1879 the appellant hauled
some rails on the land, but no fence was
erected, nor does it appear that any act
was done showing clearly an intention to
iDclose any specific part of the land. The
evidence OF the appellees goes to show
that no fencing was done on the land as
indicating possession until the latter part
OF the summer Of 1880. The court below
held that limitations ran until June 1,
1885, When the Joint petition wss filed,
but we see no reason why the original
petition should not stop limitations.
The evidence does not show that the aD-
pellant had any exclusive possession five
years prior to the fling of the petition, IS
! the hauling of the rails does give suffi-
Client evidence Of such possession, how
ever much it may indicate the iDtention
10 claim adversely. An actual Enclosure
by fence is not necessary in al
cases. but other circumstances must De
taken into consideration. To give title
by limitation there must be en- adverse
claim which may be manifested by facts
not amounting 20 exclusive possession,
WIile an exclusive possession mayl be
such SIS to be sufficient evidence of aasRt-
verse claim. The evidence OF the appel
liant leaves the time of the commence
ment Of the limitations in doubt while the
appeIees tend strongly to fix the date
later than June +, 1880; under such
facts the finding of the court that the
completed inclOSure was not made prior
20 June cannot be disturbed A new
trial was sought to be had for the appel
liant to get the benefit OF his Wife's tests
mOnY, which he said was in the nature
OF newly discovered evidence, but this
evidence is not shown to have been dis
covered after the trial. There is no err
ror in the judgment, and it will be at
tlrmed.
W. 81. Williams ct al. VS. Meg-
chants National Bank of KansGs City,
from Cooke county. Opinion by Willie,
chief justice. Appellee's sue on the
following instrument in writing: "Gaines-
vile, Texas, September l, 1883 Nine
months after date promise to pay to the
order of myself S12, 800, for value re-
CeiYed, payable at the office Of the
Gainesville National Bank, Gainesville,
Texas, with interest from maturjty until
paid at the rate of II per cent. per annums
In case of n0n-payment of the above note
at maturity | hereby authorize any
licensed attorney at-lsW to appear for me
in court and to accept service, waive
process and confess judgment, etc. nsThiS
note was signed by W. Il. Williams and
indorsed by him first and several Other
ind0rSers after HIM. The suit w&s filed
April 20, 1885, and the same day
Judgment was confessed for the maker
and all the indOrsers for the full amount
due and ID per cent. attorneys fee; judg-
ment was rendered and g motion for q
new trial was Overrulcd. There is no
authority in the note to confess judg-
ment for any other than w. II. Williams.
There is no Inquiry as to whether the
power would embrace others VINO signed
the note before delivery, but it is the
legal presumption that the present in
dOrsers did not so sign. The authority
to confess Judgment must be strictly
construed, and its obligation cCnnOt be
varied so as to include parties not in
tended by the note. The parties in this
note other than the maker are Or
binary indOrsers VINO have not author
lied q confession of judgment. The in
dorsers undertake that the maker
shall do what is promised IN the note, but
it is coupled with the condition that
the note be protested and notice
gwen him, or suit will be brought in d
given time; and although these condi-
tions may be dispensed with, it is not
done in this case. An indorser cannot be
bound by the maker of the note to have
Judgment confessed against him. We
think the court below erred in allowing
Judgment to be rendered against the par
ties who indOrseQ subsequently to the
maker, and this necessarily reverses the
Judgment as to all the defendants.
NJ. J. Doyle vs.. T. P. H0rd, from BeXaT
county. Opinion by Stayton, J. This
vas suit brought to r5cOv.r an excess
of money paid for tract of land. The
appellant conveyed to appellee $40 acres
Of land with general warranty, for which
the latter paid one-half cash and gave q
note for the balance at 81 per acre. Be-
fore the location under which appellant
claimed was made, other locations were
made covering $500 acres Of the above
named GAO acres. The suit was to cancel
the note and recover all over the sum of
50 per acre Of the money paid. The
land was sold by metes and bounds
and the appellee was not to take any risk
as to the number of acres conveyed.
There is nothing in the case to give appli-
cation to the rule that an express war
rsnty will not be applied to cover an open
or known defect with reference to which
parties have contracted. There is no
claim that the part of the land embraced
in the conflict was of any greater value
per acre than was the part embraced,
hence the judgment below must be
affirmed.
J. S. Scott ct al. vs.. John 7. WoffOrd,
appeal from Wichita county; opinion by
the court. Reversed and renamed on
confession of error by the appellee.